Opinion
December Term, 1826.
From Caswell.
A deed produced under a subpoena duces tecum was left after the trial among the papers in the office: Held, that it was subject to the control of the party producing it, and where the court below ordered the deed to be delivered up by the clerk. Held further, that the opposite party in the cause could not appeal from such order.
A DEED from Solomon Graves to Sarah B. Carter having been produced on the trial of a former suit between these parties, under a subpoena duces tecum directed to the agent of Sarah B. Carter, and having been left among the papers of (75) that cause, the clerk, under the instruction of Solomon Graves' counsel, refusing to deliver it up, Mrs. Carter applied for permission to withdraw it from the office. By the direction of the presiding judge, notice of this application was given to the counsel of Graves. The application was opposed, and on the argument the statement made in the cause heretofore tried between these parties, as reported in 9 N.C. 576, was read and formed a part of this case.
Badger for the appellant.
J. M. Morehead for the appellee.
His Honor, Judge Daniel, directed the deed to be delivered up to the applicant, whereupon Solomon Graves appealed.
It appears that the deed in question was executed by the defendant to the plaintiff; that it was not in the possession or under the control of the defendant, but in the possession of the plaintiff's agent. It was for this reason that the defendant secured a subpoena duces tecum to be served on the agent, to have the benefit of the deed on the trial of the suit set forth in this case; that when the deed was brought to court, and after the trial of that suit it fell into the hands of the clerk of the court, who was cautioned by the defendant's counsel not to let it be taken out of the office. It is to regain possession of the deed that this application is made.
It is to be observed that the deed was private property, and the defendant had no greater right to it after the trial than he had before; the law interposed so far only as to give him a right to use it as evidence in the trial of the suit; and the law would not be true to itself if, after the purpose was answered for which it dispossessed the plaintiff of the deed, it did not place her in statu quo by redelivering it to her; neither a right to the deed nor rights claimed under it were intended to be disturbed by its production on the trial of that suit. (76) It would therefore appear that the court did right in directing the deed to be delivered up. But from another view of the case, it appears that no effective opinion can be given on that point. By the act of 1818, ch. 962, sec. 4, appeals by either party are permitted to be brought to this Court from any sentence, judgment, or decree made in the Superior Courts. In this case Mrs. Carter made an application to the court for the deed. Legally speaking, Solomon Graves had no interest in the application; but the court directed notice to be given to his attorney — not his attorney, I presume, in this case, but his attorney in the former suit. This did not make Graves a party defendant; it did not constitute in court such a cause as the act of assembly contemplates in regulating and authorizing appeals from the Superior Courts. This is a proceeding sui generis.
I think the defendant had no right to appeal, but that the appeal should be dismissed with costs.
Appeal dismissed.
Approved: Davidson v. Cowan, post, 306.